Barnes v. Nelson

• Decision Date: 07 May 1909
• Parties: A. P. BARNES, Plaintiff and appellant, v. C. M. NELSON, Defendant and respondent.
• Court: South Dakota Supreme Court

23 S.D. 181, 121 N.W. 89 (1909)

A. P. BARNES, Plaintiff and appellant v C. M. NELSON,

Defendant and respondent

South Dakota Supreme Court

Appeal from Circuit Court, Minnehaha County, SD

Hon. Joseph W. Jones, Judge

Reversed

Joe Kirby

Attorneys for appellant.

A. F. Orr and Tom C. Smith

Attorneys for respondent.

Opinion filed, May 7, 1909

CORSON, J.

This is an appeal by the petitioner and relator from the judgment in habeas corpus proceedings denying his application for a discharge from custody and remanding him to the custody of the defendant, as sheriff of Minnehaha county. On May 19, 1908, the circuit court of Minnehaha county issued a writ of habeas corpus directed to the sheriff of that county, commanding him to have the body of the said petitioner, together with the time and cause of such imprisonment and detention, before the circuit court. The defendant as such sheriff made his return, in which he states, in substance: That he was the duly elected and qualified sheriff of said county; that on the 18th day of May, 1908, there was duly issued and delivered to him for service a warrant or order of the Governor of this state, under and by virtue of the command of which “he arrested the above-named relator, A. P. Barnes, designated in said warrant as D. P. Hunter, alias J. F. Schrader, and took him into custody and so held him under the commands of said warrant.” The warrant of the Governor made a part of the return is the usual form and requires the officer to arrest “D. P. Hunter, alias J. F. Schrader,” and safely keep and deliver him to O. O. Rock, sheriff, who is authorized to receive him; to this return the petitioner filed the following answer:

“Comes now your petitioner, A. P. Barnes, and answers the return filed by the defendant herein and respectfully states and shows to this court: (1) That your petitioner’s name is A. P. Barnes, and not D. P. Hunter, or J. F. Schrader, and that he is not the party mentioned or described in the executive warrant set forth in said defendant’s return. (2) That he is not a fugitive from justice from the state of Iowa, but is a resident of the state of South Dakota. … (4) That the executive authority of the state of Iowa has never demanded of the executive authority of this state the arrest or delivery of your petitioner, that there has never been produced to the executive authority of this state a copy of the indictment found, or any affidavit, made before a magistrate of said state of Iowa charging your petitioner with having committed treason, felony, or other crime against the laws of the state of Iowa, certified as authentic by the said Governor of the state of Iowa, or otherwise. Wherefore your petitioner prays that he be discharged from custody and granted his liberty. Joe Kirby, Attorney for Petitioner.”

This answer was duly verified by the said petitioner, as follows:

“State of South Dakota, County of Minnehaha—ss.: I, the undersigned, being first duly sworn, do on oath depose and say that I am the petitioner above named, that I know the contents of the foregoing answer, and the same is true of my own knowledge. A. P. Barnes.”

On the trial the defendant offered in evidence the affidavit of his excellency, Coe I. Crawford, Governor of this state, annexed to which was a copy of the requisition, indictment, and affidavit of Tom C. Smith, all of which were received in evidence. The requisition is in the usual form and requires the governor of this state to apprehend “D. P. Hunter, alias J. F. Schrader,” and deliver him to O. O. Rock, who is authorized to receive him. The indictment is quite lengthy, and, in the view we take of the case, it will only be necessary to insert the following: “The grand jury of the county of Harrison accuse D. P. Hunter, alias J. F. Schrader, of the crime of obtaining by false pretenses a signature to a written instrument, the false making of ‘which would be forgery committed as follows.” The affidavit of Tom C. Smith states that said D. P. Hunter, alias J. F. Schrader, is a fugitive from justice. It is stated in the abstract that the papers mentioned in the affidavit of his excellency, Coe I. Crawford, consisting of the requisition, certificate of clerk, copy of indictment, and affidavit of Tom C. Smith, all of which were offered by the defendant and received in evidence, constituted the whole of the evidence presented to the honorable court.

The court rendered a judgment in which, after making certain recitals therein, it proceeds as follows:

“And it appearing to the satisfaction of the court that the said petitioner, A. P. Barnes, was legally held upon a warrant issued by the Honorable Coe I. Crawford, Governor of the state of South Dakota, upon the requisition of the Honorable A. B. Cummins, Governor of the state of Iowa, and that the said warrant was sufficient in form and substance, and that said A. P. Barnes is a fugitive from justice charged with the crime of obtaining by false pretenses a signature to a written instrument the false making of which would be forgery, a felony under the laws of the state of Iowa, and it is found that the petitioner, A. P. Barnes, herein, is the same person described in said warrant as D. P. Hunter, alias J. F. Schrader. It is therefore ordered end adjudged that the application of the petitioner, P. Barnes, for discharge, is denied, and he is hereby remanded to the custody of the sheriff of Minnehaha county, S. D.”

to the making of the foregoing order and judgment the said petitioner, A. P. Barnes, duly excepted for the following reasons:

“That the evidence introduced before the court is not sufficient to sustain such order, because said indictment is against D. P. Hunter, alias J. F. Schrader. The requisition warrant issued by the governor of this state authorized the arrest of said Hunter only, and that the petitioner’s name is A. .P. Barnes, and he is not the person against whom the alleged...